2001 Unesco Convention: Origin And Consequences

The 2001 UNESCO-Convention on the Protection of the Underwater Cultural Heritage: Origin and Consequences Thijs J. Maarleveld Maritime Archaeology Program, University of Southern Denmark Dette bidrag perspektiverer UNESCO’s 2001 konvention og ser på, hvordan den passer sammen med nationale og international beskyttelsesinitiativer vedrørende kulturarven. I artiklen belyses konventionens tilblivelse og baggrund, og der ses på såvel dens kortsigtede som langsigtede konsekvenser. I anledning af ”De nordiske maritime museers arbejdsmøde” på Færøerne lægges der i artiklen særlig vægt på situationen i den nordatlantiske region og konventionens konsekvenser for maritime museer. Introduction On November 2nd 2001 the UNESCO-Convention on the Protection of the Underwater Cultural Heritage was adopted by UNESCO’s General Assembly. The notions that are formalized in this document reflect a discussion on the significance of heritage -and specifically maritime heritage- that has spanned the second half of the twentieth century. Discussions are ongoing now that cautiously and one by one states decide to ratify the Convention. Parts of that discussion seem to be nonsensical or futile from an archaeologist’s point of view. This may especially seem to be true in the North, where a solid tradition of appreciation and protection has qualified developments and has solidly defined roles of museums and archaeologists alike. Discussions on treasure-hunting and exclusive salvage rights that are sold to salvors or historically informed entrepreneurs are easily dismissed as irrelevant. Hadn’t we long ago agreed to do things differently? That may be so, but it actually makes these discussions even the more relevant as they touch upon the essence of what heritage management is about. In many ways, the maritime arena is the zone where the meaning of heritage for present-day society is most splendidly at stake. That applies to the North-Atlantic as much as to any other region of the world. After all, the regimes for archaeology, for museums and for the treatment



After the discovery of these objects, the Faroese government was contacted by a French firm seeking a contract for the recovery of historic wreck-material. They assume that the material issues from the Dutch East Indiaman Walcheren that disappeared in the North Atlantic in 1667. The identification is highly questionable, but is in conformity with treasure-hunting lore. Other firms have been looking for the Walcheren along the Icelandic and Norwegian coasts. Photo: Føroya Fornminnisavn.

of heritage material are local or national regimes. They do not indisputably apply when they are not backed up by regulations and jurisdiction. This circumstance affects the way these regimes are or can be applied to maritime heritage. Other regimes are all too easily put in their stead. The ways in which this happens, conform to simply predictable templates. Also, such mechanisms operate in the third world and in the North Atlantic alike. The host of the present ‘arbejdsmøde’, the Faroe Islands National Museum itself has recently been contacted by a company disguised as a scientifically oriented foundation in order to boost their museum resources1. ‘Give us the exclusive right to look for and dispose of a specific or any historic wreck in your waters and we will give you wonderful things’ (keeping or selling the rest, of course). It is such a recognizable approach, all around the world. The Faroese government was not as naïve as to be convinced, but unfortunately many others easily are.

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Today’s middlemen for the antiquities market are as charming and knowledgeable as Belzoni or Lord Elgin’s middlemen were in the 18th and 19th centuries2 and politicians do not necessarily see the long-term implications of what is presented as an exciting cultural adventure. Taking a short term perspective and inspired by the economy of the day, they easily forget that it is both economically and culturally stupid to sell off your heritage when you can have it all.3 To cite the example of Lord Elgin again: they take the disinterested standpoint of the 1799 governor of Athens, the Voivode, regarding the integrity of the Parthenon, rather than the position that Melina Mercouri so fervently took and defended 180 years later.4 Disinterest all too often leads to denial of the issues, to denial of harm and loss as compared to the supposed (financial) gain. Should we bother at all? It is evident that not every shipwreck-site is as iconic as Athens’ Parthenon and its marbles. Nevertheless, I am convinced we should be concerned, and the more so because of disinterest and denial. After all, the reversed argument is just as powerful: isn’t the invisible and vulnerable, but potentially valuable at least as worthy of our concern as the very obvious? In fact, there are more reasons why I am glad to present this paper to a Nordic maritime museum audience. Nordic operators citing museum interests are active all over the world, notably in Asia. Are they the ambassadors of the way in which Nordic maritime museums want to operate? They convince economically more strained and more naïve governments than that of the Faroe Islands that with exclusive rights they will produce wonderful things….. for the world antiquities market, producing nice presents for museums (or officials) on the way. They cite museum curators who are specialized in (oriental) ceramics as their scientific backing and forget to mention that this specialization is not necessarily the same as a specialization in archaeological field research.5 The naivety and vanity with which such specialists get involved beyond their competences eclipses the naivety and vanity of the implicated politicians.6 A last reason why it is useful to summarize and contextualize developments here is that Norway took a very special and exceptional position in the negotiations on the Convention as well as in the subsequent vote.7 In this presentation, the Convention and the way it came about will be put in the perspective of other instruments developed by UNESCO, as well as by the Council of Europe. Their activities are evidently informed by affiliate NGO’s, such as ICOM and ICOMOS, whose role will also be dealt with.

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UNESCO, dialogue to counter conflict The United Nations Educational, Scientific and Cultural Organization was founded in November 1945 with hands-on idealistic motives that are well-expressed by the organization’s motto: “Since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed”. The potential explosiveness of heritage issues was immediately in evidence. So were the use and abuse of heritage in creating mindsets facilitating rather than preventing war.8 It was therefore quite a logical consequence to define heritage, dialogue about heritage and heritage protection as one of the more specific areas of attention within UNESCO’s vast mandate. Creating consensus on the way in which member-states would cope with issues relating to ‘heritage’ was a common sense way of dealing with questions of mutual respect and avoiding direct discussions about ideology and religion. Efforts to agree on guidelines and rules have first of all been aimed at material remains. They addressed museum policies, monuments, archaeology and built heritage. Although the significance of material remains clearly depends on an ‘intangible dimension’, the efforts were aimed at hands-on resolving of practical issues and potential spheres of conflict.9 It was only at the very end of the twentieth century that discussions were extended to include ‘intangible heritage’ as such. Even in that debate, however, direct discussions about ideology and religion were avoided.10 The ‘Hague Convention’ 1954 The first legal instrument that UNESCO adopted in the field of heritage protection is the UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict, adopted at The Hague, 14 May 1954. It deals with war and peace and as such it is a sequel to the (fourth) Convention of 1907 concerning the laws and customs of warfare on land. It need not really concern us here, although it is evident that this Convention has guided postwar heritage management practices in many countries. It has influenced the practices of listing of monuments and of buildings in which collections are being kept. All these are adorned with the typical ‘blue shield’. The procedures for application of the Convention were implemented for the first time during the 1967 Middle East conflict. Many conflicts have followed and the Convention has since been updated with its ‘Second Protocol’, which entered into force in 2004.

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Here, it suffices to cite one of the considerations of the preamble, as it clearly reflects a philosophy that is followed in later instruments. It is certainly a consideration that is relevant for maritime heritage, and it reads: “Being convinced that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world”. It is a consideration that binds 116 states. The ‘New Delhi Recommendation’ 1956 Issues that specifically concern us here are more explicitly dealt with in the UNESCO Recommendation on International Principles Applicable to Archaeological Excavations, which was adopted on 5 December 1956 in New Delhi. It is not a Convention and so it is not a binding legal document. Nevertheless it deserves more attention than it generally gets. In fact it is hardly ever cited. I would be surprised if many of the present audience knew of its existence. I am certain that many archaeologists, while tacitly following its guidance, have never even heard of it. Despite the fact that the document is 50 years old and despite the fact that it was presumably drafted by generalists rather than by people intricately familiar with archaeological practice11, the document compares favourably with many of the guidance documents that have been produced for archaeological practice in much later years. The Recommendation deals with the responsibility of each country for the heritage within its border, with the authorization of foreign expeditions, with involvement of local authorities and local archaeologists in such cases, with integrity of the find assemblage and the excavation archive, with the assignment of find-assemblages, reasonable time limits for study and accessibility of sites and collections. It also deals with repression of unauthorized and clandestine excavations as well as the illicit export of archaeological finds. Occupying states should refrain from excavation in occupied territory and objects derived from clandestine excavations or theft should be returned to their country of origin. The only issue, in which the Recommendation is clearly a product of its time, is where it deals with trade in antiquities. It outlines that each UNESCO member state should consider the adoption of regulations in a way so as not to encourage smuggling of archaeological material or adversely affect the protection of sites. It should do so in the higher interests of the common archaeological heritage. However, at the same time, foreign museums should be able to acquire archaeological objects in or-

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der to fulfill their scientific and educational aims. This clause also stipulates that these objects should not, in that case, be under any restrictions due to the laws in force in the country of origin.12 In practice this puts the burden of proper behaviour with the place of origin and its organization and laws, rather than with any acquiring institution. With regard to underwater sites this underscores an inherent juridical weakness.13 It also deepens, rather than bridges the potential gap between the collecting strategies of museums and of archaeological instutions, wherever these two are separate. Also, this clause of 1956 may have encouraged internationally operating museums in their collecting policies during the ensuing economic boom. These policies have since been responsible for sharp international disputes and problematic national debates.14 Other Recommendations Standards on how to deal with cultural heritage continued to be discussed and agreed upon at UNESCO. For a long time all these standards took the form of Recommendations, which means that states members of UNESCO agreed that this was the way things should be done, but that the rules were not legally binding. Apart from the Recommendation on International Principles Applicable to Archaeological Excavations, these guidelines include a Recommendation concerning the Most Effective Means of Rendering Museums Accessible to Everyone (1960), a Recommendation concerning the Safeguarding of Beauty and Character of Landscapes and Sites (1962), a Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works (1968), a Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage (1972), Recommendations concerning the International Exchange of Cultural Property and concerning the Safeguarding and Contemporary Role of Historic Areas (1976), a Recommendation for the Protection of Movable Cultural Property (1978) and finally a Recommendation on the Safeguarding of Traditional Culture and Folklore (1989). The ‘Convention with the long name’ 1970 In 1970, however, a major step was taken. For the specific and economically rising sphere of dealing in art and archaeological objects, the soft instrument of guidance through a Recommendation was no longer considered committing enough. In replacement of a Recommendation of 1964 the UNESCO Convention on the Means of Prohibiting and Pre-

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venting the Illicit Import, Export and Transfer of Ownership of Cultural Property, was adopted. It is usually known as the ‘Convention with the long name’. As its long name suggests it deals exactly with those issues on which the New Delhi Recommendation is unsatisfactory. These are now settled in a legally binding document, a Convention. Or are they? That begs the question. Even though the Convention already entered into force two years after it had been adopted, its implementation has been awkward to say the least. In fact the economic conditions favourable for the antiquities market continued to grow. ‘Subsistence digging’ by the poor and powerless who market any antiquities they can unearth15, wellorganized high-tech excavations aimed at rapidly reducing archaeological sites to saleable objects and a network of whitewashing and international trade continued to grow accordingly.16 The Convention has inherent weaknesses. Part of these have been addressed by the negotiation of a supplementary Convention addressing the private law issues involved. This task was taken up by the International Institute for the Unification of Private Law (UNIDROIT) and resulted in the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome, 1995).17 The two Conventions need to be implemented together, as they are complementary, but by many states they are not.18 In fact, the very reluctant ratification and implementation of the 1970 Convention itself has been a major obstacle for decades.19 This all means that the production of archaeological objects for the market has not stopped despite the existence of the Convention for over 35 years. The inconsistent territorial application means that tomb-raiding, treasure-hunting, smuggling and the falsification of provenance and pedigree continue unabatedly and that the auction houses flourish as never before. The climate, however, seems to be changing. The public debate has become more extended.20 In this debate, disinterest and denial seem to make way for concern. Although the process has been slow, 110 States have presently joined the Convention. The ‘World Heritage Convention’ 1972 One could contend that the UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage of 1972 does not deal with issues directly affecting archaeological practice and that therefore it should concern archaeologists less than many of the above Recommendations or the 1970 Convention. However, the Convention has such impact and guides so much energy and thinking in heritage management

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that it would be a stupid position to maintain. After all, the Convention has proven to be the instrument par excellence that puts heritage issues on the political agenda. How did it come about? Besides Recommendations, practical engagement had also figured on the agenda at UNESCO in the sixties. Through UNESCO’s offices a large international rescue-operation for the temple of Abu Simbel in Nubia had been organized. It became an icon for the fact that the needs of development and the needs of heritage preservation should in one way or another be reconciled. It was after all, the building of the Aswan High Dam and the ensuing creation of the vast reservoir Lake Nasser, which threatened this and other temples. Originally, the plan had not taken any cultural impacts into account.21 The Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works of 1968 was a direct result of this consorted action. Other calls for engagement followed, notably related to Carthage, the Borobudur and Angkor Wat. What this all reflects is highly relevant for the protection of maritime heritage, as we will see. The sentiment of common responsibility for heritage in occupied territory and zones of war, as accepted in the Hague Convention, was gradually extending to a general feeling of ‘common ownership’. This means joint responsibility, also in cases where it is not war, but other agents that threaten it. This means joint responsibility also if it is not war but other reasons that create a vacuum of power and jurisdiction. An interesting feature of the World Heritage Convention is that besides codifying past practice of UNESCO addressing cultural heritage, it extends the principles of co-operation to the natural heritage, ‘whose protection is obviously all the more necessary in that pollution of the environment has grown considerably worse’.22 We must remember that the Convention was adopted in the very year that the Club of Rome published its influential report.23 Integration of the two concerns has not been very marked, but has certainly been a feature in discussions on World Heritage status for the Wadden Sea.24 The Convention is meant to apply to the modern parallel of the Seven Wonders of the Ancient World, as allegedly first suggested by Herodotus. It therefore sets a procedure of determining the ‘Outstanding Universal Value’ of the heritage in question before it is inscribed in the register, the World Heritage List. The list has become UNESCO’s trademark. Inscription has become as prestigious as to indeed produce

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an intense and politically laden dialogue between States Parties in the meetings of the World Heritage Committee. National pride and economical benefits (tourism!) dominate the debate, which is also skillfully diverted to include the original purposes of UNESCO: mutual respect and peaceful negotiation.25 The World Heritage List presently includes 830 wonders of the world in 138 countries. That is a far outcry of the ancient seven26, but better reflects present-day thinking on the diversity of culture.27 The Convention binds 183 countries. UNESCO has 191 member states. The UN has 192. Although the ‘World Heritage List’ and the criterion of ‘Outstanding Universal Value’ definitely are the most conspicuous aspects of the UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage, it is nevertheless its focus on co-operation and mutual assistance that is most characteristic and important. It is the basis on which further standards were developed. The ‘Underwater Convention’ 2001 In addressing the destructive influence of the antiquities market, the 1970 Convention definitely has a strong weakness where the underwater heritage is concerned. Its title is UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. This seems to be rather detailed and accurate. However, the term ‘illicit’ reflects the fact that the Convention, which is an agreement between states, presupposes that states make sure that what is undesirable or condemnable is made illegal. If they choose not to develop and implement their own standards and laws, what can the international community do? It also presupposes that all archaeological heritage has a government, a territorial custodian to look after it. Of course there is the unfortunate exception of contested war zones and occupied areas, but that exception is provided for by the Hague Convention. What, however, of custodianship for heritage outside the borders of any state? If no law applies, then high-tech excavations in order to rapidly reduce archaeological sites to saleable objects can be organized at will. The term ‘illicit’ simply does not apply, however contrary the operations may be to all the discussion relating to ‘common ownership’ of the ‘common heritage of mankind’. The charming and knowledgeable middlemen of the antiquities trade go to great length to explain that everything is completely legal and that looting and selling the heritage is actually all for the better, …. just as Belzoni or Lord Elgin had done in their day. But

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The concept of the Freedom of the High Seas was firmly established in international law Hugo de Groot or Grotius in his Mare Liberum of 1609. This picture by Michiel Jansz. van Mierevelt (1567-1641) was done 22 years later (Rijksmuseum, inv.nr. SK-A-581).

does no law apply at sea? Well, the situation is different to say the least. Authority, responsibility and jurisdiction have not been divided amongst autonomous states. Instead, many dealings at sea are governed by the doctrine of the ‘freedom of the high seas’. The concept was substantiated in juridical terms in the early seventeenth century by Hugo Grotius, who is considered to have laid some of the foundations of international law and it has governed international thinking ever since.28

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Until the middle of the 20th century coastal states claimed jurisdiction only over a narrow strip of territorial sea and of course on board of every ship flying its flag. Even in the territorial seas any ship can go, as long as it is on ‘innocent passage’. Since then, jurisdictions have considerably been extended in order to deal with offshore mining, abate conflict over fisheries and regulate environmental issues. The way this has been done has been codified in the United Nations Law of the Sea Convention that was adopted on December 10, 1982 at Montego Bay, Jamaica, after very complicated negotiations that had spanned over twenty years. A characteristic of the Law of the Sea is that jurisdiction only extends to specific zones with maximum limits and only for the specific purposes for which these zones are defined. Accordingly, jurisdiction over the Continental Shelf (maximum extent to the rim of the shelf) is limited to jurisdiction over the exploration and exploitation of mineral resources, jurisdiction over the Exclusive Economic Zone (maximum extent 200 miles) is limited to jurisdiction over other resources, and so on. It is only in the territorial waters (maximum extent 12 miles) that the coastal state has full jurisdiction. And what about heritage and archaeology? Hadn’t that been thought of? Yes it had, but only in a confused manner. Considering that the Law of the Sea Convention was finalized in the year that Melina Mercouri started her campaign for repatriation of the Elgin Marbles it is not completely surprising that archaeology, clandestine excavations, objects and smuggling were more or less seen as synonymous by the negotiating diplomats.29 Anyway, one of the ways in which heritage is dealt with, equates archaeology with illicit trafficking and creates the legal fiction that states may assume an infringement in a zone contiguous to its territorial waters (maximum extent 12 + 12 = 24 miles) to be an infringement that took place within its territory. The Contiguous Zone, if proclaimed, gives jurisdiction only in matters of smuggling and of archaeology.30 But what about heritage in other zones? Or in the ‘Area’, the seabed and ocean floor, and subsoil thereof beyond the limits of national jurisdiction? The Law of the Sea also stipulates that ‘States have a duty to protect objects of an archaeological and historical nature found at sea and shall co-operate for this purpose’.31 It does not stipulate, however, how this should or could be done. Consequently, very little was achieved. In practice the underwater heritage is unprotected by the Law of the Sea. Everyone can do as they like and it will still pass as ‘innocent passage’.

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A schematic view of the zones of maritime jurisdiction according to the United Nations Law of the Sea Convention, such as they are discussed in the text. After Lund 2006.

In 2001, the evident gap in the system of heritage protection world wide was bridged by the adoption of the UNESCO Convention on the Protection of the Underwater Cultural Heritage.32 In line with the earlier Conventions and Recommendations the joint responsibility for heritage is underlined. Even though the Convention acknowledges the specific interest of states with a ‘verifiable link’ with the heritage in question, common interest and joint responsibility are nevertheless taken as its basis. For this to work, the Convention provides for a system of information exchange and international co-operation. But there is more. The Convention includes an Annex, which is an integral part it. The Annex contains ‘operational rules’. In practice they provide a shorthand professional standard, including ethical conduct. They are a one to one translation in juridical terms of the ICOMOS Charter of 1996.33 The Convention overrules the rules of salvage.34 This is useful in that entrepreneurs and middlemen in the treasure-hunting industry have consistently cited such salvage rules to prove that their actions were both acceptable and legal.35 Another important feature is that the Convention distinguishes between ‘Activities incidentally affecting Underwater Cultural Heritage’ and ‘Activities targeted at Underwater Cultural Heritage’. In projects that may incidentally affect heritage, it has already become customary in many places to include impact assessment and mitigation measures. These follow their own systematics which are quite analogous to measures relating to projects affecting heritage on land.36 ‘Activities targeted at Underwater Cultural Heritage’ are another matter. There must be good reasons for a ‘lustgrabung’ and producing artefacts for the antiquities market can no longer be considered one of them.

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A very important aspect of the adoption of the ‘Underwater Convention’ in 2001 is that all the states present at the vote, even those states voting against it37, accepted and declared to unilaterally live up to the operational rules of the Annex. They have committed themselves politically to adhere to these basic standards. Council of Europe, forging unity in a torn continent Although there is no need to thoroughly scan all the documents produced by the Council of Europe, it is nevertheless useful to give it a moment’s thought. For one thing, it was at the Council of Europe that specific needs of underwater heritage management were first formulated in an international political setting. For another, much of today’s archaeological practice in Europe is adapted to conform to outlines agreed upon at the Council. ‘Europe’ also has its specific set of regulations in order to restrict smuggling and condemnable trade in antiquities, but here these will be left aside.38 The Council of Europe was founded in 1949 with the aim ‘to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress’. Assertion of human rights, parliamentary democracy and the rule of law and the standardization of social and legal practices were its main aims in the postwar period. The promotion of (awareness of) a ‘European identity on the basis of shared values cutting across different cultures’ was identified as necessary for this purpose. As at UNESCO, dealing with heritage issues is an expedient way to tackle identity and mutual respect. In 1949 the Council rallied 10 European countries; it has since grown to encompass 46 countries, including 21 countries from Central and Eastern Europe. In other words, it covers a far larger area than the 27 members of the European Union, for which in many ways the Council is a trailblazer. The Council has addressed many aspects of cultural heritage, its protection and its management, both in its pursuit of standardization and in its ambition to define a ‘common European heritage’. In 1969 it adopted the European Convention on the Protection of the Archaeological Heritage. The Convention is not very substantive and it did not produce an alignment in the different traditions of archaeology and archaeological heritage management across Europe. However, it did provoke discussion, especially in the eighties when the need for integration

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of heritage management and planning was urgently felt in archaeological circles.39 Subsequently the Convention was revised, with profound consequences all over Europe. ‘Recommendation 848’ 1978 In 1978 it was the Council’s Parliamentary Assembly that adopted ‘Recommendation 848, on the underwater cultural heritage’. It was the result of a report that the Assembly had commissioned in order to find a common European approach to heritage issues in the UN Conference on the Law of the Sea that has been alluded to above.40 The Report and the Recommendation advised that a European Convention on the Underwater Cultural Heritage be drafted. It also advised to ‘negotiate agreement between member states on the declaration of national cultural protection zones up to the 200-mile limit, wherever that limit is in keeping with geographical realities, as a basis for the implementation of the proposed convention’. Acceptance of such a protection zone proved one step to far in pushing back the ‘freedom of the high seas’ and instead the Law of the Sea Convention ended up with the provisions we discussed above, and with a cultural protection zone of 24 miles at a maximum. In the meantime, before the Law of the Sea Convention was concluded, the Council of Europe started the negotiation of a European Convention on the Underwater Cultural Heritage. The text was ready in 1985.41 It never came to be adopted. It accepted the regime of UN Law of the Sea Convention and referred to it. This was not acceptable to the delegation of Turkey42 and it was basically for technical political reasons that the Convention was never opened up for signature. As a follow-up of ‘Recommendation 848’ the problems of underwater heritage management were taken more seriously in many European countries, whereas the Council of Europe itself engaged in targeted capacity building. It was thus indirectly that the Recommendation had most of its influence. The ‘Valletta Convention’ 1992 The European Convention on the Protection of the Archaeological Heritage [revised] is the last Convention I will mention in this contribution. It is also, most probably, the first with which an archaeological audience is relatively familiar. After negotiations at the Council of Europe it was concluded in Malta in 1992. It has guided the integration of heritage management in planning, seeing heritage protection as one of many in-

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terests to be balanced and seeing the costs involved as integral to the planned development. It motivated stakeholder involvement. It has thoroughly influenced the development of archaeological consultancy and the timely assessment of impacts on the cultural heritage. It is therefore particularly relevant for ‘Activities incidentally affecting Cultural Heritage’. The fact that the 1985 draft for a European Convention on the Underwater Cultural Heritage has been taken into account during its preparation, ensured that this also applies to ‘Activities incidentally affecting Underwater Cultural Heritage’.43 As a downside, all discussion relating to its implementation distracted attention from ‘Activities targeted at Heritage’. On land, this is not really a problem, as most interventions are related to ‘incidentally affecting’ activities anyway. For the underwater cultural heritage, such activities are likewise important. But the problems of accessibility, recreational use and all means of activities targeted at it are at least as fundamental.44 It is for that reason that it is a major challenge to make sure that the ratification and implementation of the 2001 UNESCO Convention will be taken up with as much emphasis as was given to the ‘Valletta Convention’. ICOMOS, ICOM, ICMM, professional NGO’s A discussion on the origin of the 2001 UNESCO-Convention is not complete without mentioning non-governmental organizations. Several have been involved. At a preliminary stage, exercises by the International Law Association (ILA) have been crucial. However, let me limit myself to nongovernmental organizations of heritage professionals that operate world-wide. ICOM, as you all know, is the International Council of Museums and ICMM is the more specialized International Council of Maritime Museums. Both deal with collections of movable heritage and ICOMOS, the International Council of Monuments and Sites, deals with unmovable heritage and its specific problems of in situ management, consolidation and restoration. Both ICOM and ICOMOS are a UNESCO affiliate, which means that UNESCO seeks professional advice in the bosom of these two globally operating organizations. In the late seventies, as we have seen, the problems of underwater cultural heritage were more often than not associated with import, export and transfer of ownership. It is not surprising therefore that ‘Recommendation 848’ advised not only to draft a European Convention on the Underwater Cultural Heritage, but to encourage its administration

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and application at a regional level in cooperation both with UNESCO and ICOM. In the absence of relevant jurisdiction, the term ‘illicit’ does not fully apply to much of the market-supply of archaeological objects from underwater sites. On the other hand, the related activities can hardly be regarded as ‘innocent passage’. Reduction of archaeological sites to saleable objects is undesirable and condemnable and the proceeds must consequently be regarded as ‘tainted’45. ICMM deserves the credit that it first banned the acquisition of such objects by its membership. It did so in its Barcelona Resolutions on Underwater Archaeology of 1993. In the meantime UNESCO had approached ICOMOS for a more encompassing advice. In 1992 the International Committee on the Underwater Cultural Heritage (ICUCH) was formed as a specialist ICOMOS Committee. Its first mission was to produce a simple set of professional standards. This resulted in the International Charter on The Protection and Management of Underwater Cultural Heritage that was adopted by the 11th General Assembly of ICOMOS in Sofia, Bulgaria in October 1996. It is a document that every maritime archaeologist should know by heart (and preferably live up to!). The ICOMOS Charter has been vital for the development of the 2001 UNESCO Convention. Its guidance has been transposed article by article into the operational rules of the Annex, which is part of the Convention and to which each and every party in the negotiations has subscribed. Even those states that do not want to commit themselves to the Convention itself have declared allegiance to the Annex. Consequences and concluding remarks There are two major developments in the world that have thoroughly influenced the way the way in which cultural heritage is looked upon during the last fifty years. Both have guided the successive formulation of the policy guidance and legal instruments that have been presented above. Both are relevant for the future and need to be reconciled. The first development is a conceptual one. Traditions, heritage and heritage management used to be related to the identity of the Nation State.46 In consequence, their management was a national endeavour, the prerogative of the State. In many ways, this notion persists. However, the notions that ‘… cultural property belonging to any people whatsoever… means … cultural heritage of all mankind …’, that ‘ownership’ of heritage is not exclusive47 and that taking care of heritage is a joint responsibility, have thoroughly established themselves during the second half of

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the 20th century. For heritage under water this development has particular consequences. Exclusive appropriation becomes even less acceptable.48 Management of protection, accessibility and use is a public responsibility as before. That responsibility, however, is not exclusively taken on behalf of the responsible public body’s constituency. It is to be taken on behalf of a wider range of stakeholders nationally and on behalf of stakeholders in other states. Maritime heritage has links all over the world. The system devised in the 2001 UNESCO Convention is that coastal states shall protect ‘for the benefit of humanity’ and shall ‘co-ordinate’ on behalf of other states with a ‘verifiable link’ to that heritage. More often than not, such a ‘verifiable link’ can only be surmised or corroborated after the site has been known for some time. Keeping track of information and organizing site assessment and survey is therefore indisputably the responsibility of each coastal state’s ‘competent authority’. Elsewhere I have argued, that whatever a country’s internal organization and whatever the way it wishes to organize its archaeology, a central curatorial office and role is essential for the international system to work.49 The second development is more down to earth. The economic boom of the fifties and sixties has thoroughly influenced archaeological heritage management. For one thing the post-war reconstruction started urban archaeology in Europe. Subsequent developments created the notion of rescue archaeology and ongoing intensification has led to preventive approaches and the integration of archaeology in planning as codified in the Valletta Convention. Simultaneously, however, the economic boom has also intensively stimulated the antiquities market and the exploration of the underwater world. As a consequence heritage management has been put under stress. International co-ordination has become an absolute must. For heritage under water this development has partly worked in the opposite direction. ‘Activities targeted at Underwater Cultural Heritage’ have intensified enormously. Despite the norm and despite many influential examples to the contrary, exclusive appropriation has been a characteristic feature of this development. Many museums and governments have been lured into accepting this, laughing away the consequences in disinterested denial. In a globalizing world, however, where heritage responsibilities are taken on behalf of all, one can no longer hide behind the fact that it happens elsewhere in the world, or in a zone where control is difficult anyway. Collecting strategies that are inconsistent with wider heritage policies can no longer go unnoticed. They strike at the credibility of all

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other endeavours by such a government, such an official or museum. This is also one of the reasons why dealings with underwater heritage are relevant to all heritage policies and to all heritage professionals and have consequences for all heritage debate. This is evidently the more so since maritime heritage has a huge intrinsic quality.50 In light of all this, this discussion on the origin and consequences of the 2001 UNESCO-Convention on the Protection of the Underwater Cultural Heritage ends with the consequences for us all, who in some way or other are involved in maritime heritage management. With the Convention and all related instruments, a system has been devised that can guide our actions. It is likely that it is going to be the system of the future. It addresses ‘Activities incidentally affecting Underwater Cultural Heritage’ and ‘Activities targeted at Underwater Cultural Heritage’. How long it will take to implement, is dependent on many factors. The Convention will enter into force as soon as 20 states have ratified.

For the full implementation of the 2001 UNESCO Convention a new (and larger) generation of maritime archaeologists needs to be trained. The Maritime Archaeology Programme at the University of Southern Denmark was set up for this purpose. It is characterized by a practical approach, fieldwork and a course providing for professional diving qualifications (Photos: SDU).

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So far it has been ratified by 15.51 It is a positive sign that most of these ratifications occurred over the last year and a half. In December 2006, moreover, the United Nations’ General Assembly unanimously backed the Convention with a Resolution. Full implementation of a Convention like this, may take quite some time. The other examples have shown that. The process can be delayed and accelerated. It is important that we all are aware that each and every country represented at UNESCO during the 2001 General Assembly has committed itself to the principles set out in the Annex of the Convention, even if they abstained in the vote or had problems with the Convention as such. Reminding ourselves and our governments of this fact will help to create consistency in decisions. Full implementation will mean that the maritime archaeological effort needs to be extended. A need will arise for a new (and larger) generation of maritime archaeologists. In Europe, this need already arises as a consequence of the full implementation of the Valletta Convention in the planning of ‘Activities incidentally affecting Heritage’, above water as well as below. It is to this background that I decided to move to Esbjerg, where the occasion arose to contribute to the education of this new generation.52 Literature / Further Reading Dromgoole, S. (ed.), The Protection of the Underwater Cultural Heritage. National Perspectives in Light of the UNESCO Convention 2001, Leiden / Boston 2006. Grenier, R., D. Nutley & I. Cochran (eds.), Underwater Cultural Heritage at Risk: Managing Natural and Human Impacts, Paris 2006 (also: http://www.international.icomos.org/risk/2006/fulldocan.pdf) Lowenthal, D., Possessed by the past, The Heritage Crusade and the Spoils of History, New York 1996. Ng, L.C.W., Conservation and management of ceramic archaeological sites along the maritime silk route, Proceedings of ICOMOS 15th General Assembly and Scientific Symposium, Xi’an 2005, p. 991-1000. O’Keefe, P.J., Shipwrecked Heritage: A Commentary on the UNESCO Convention on Underwater Cultural Heritage, Leicester 2002. Prott, L.V. (ed.), Finishing the interrupted voyage, Papers of the UNESCO Asia-Pacific Workshop on the 2001 Convention on the Protection of the Underwater Cultural heritage, Leicester 2006. Rowan, Y. & U. Baram (eds.), Marketing Heritage, Walnut Creek 2004.

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Scarre, Chr. & G. Scarre(eds.), The Ethics of Archaeology. Philosophical Perspectives on Archaeological Practice, Cambridge 2006. Notes 1 As brought up during the meeting by Símun Arge. 2

Atwood, R., Stealing History, New York 2004; Goddio, F. et al., Lost at Sea: The Strange Route of the Lena Shoal Junk, London 2002; Jörg, C.J.A, The Geldermalsen, History and Porcelain, Groningen1986. 3 Why sell off your heritage if you can have it all is the ICOMOS slogan to promote negotiation and adoption of the Convention. 4 Kersel, M., The Politics of Playing Fair, or, Who’s Losing Their Marbles?, Rowan, Y. & U. Baram (eds.) Marketing Heritage, Walnut Creek 2004, p. 41-56; Lowenthal, D., Possessed by the Past, New York 1996, p. 200. 5 e.g. Jörg, C.J.A. & M. Flecker, Porcelain from the Vung Tau Wreck : The Hallstrom Excavation, Singapore 2001. 6 Renfrew, C., Loot, Legitimacy and Ownership: The Ethical Crisis in Archaeology, London 2000. 7 The Norwegian delegation claimed that setting rules for underwater heritage would upset the precious balance of the Law of the Sea Convention. It thought UNESCO incompetent in dealing with Law of the Sea matters and pleaded for negotiations to be relocated to the UN itself. At the UN Norway continued to protest against UNESCO’s initiative and it was only in December 2006 that the General Assembly of the UN unanimously adopted a Resolution backing up the UNESCO 2001 Convention. See also Kvalø, F. & L. Marstrander, Norway, S. Dromgoole (ed.), The Protection of the Underwater Cultural Heritage, Leiden/Boston 2006, 217-228. 8 Cf. Kater, M.H., Das ‘Ahnenerbe’. Die Forschungs- und Lehrgemeinschaft in der SS. Organisationsgeschichte von 1935 bis 1945, diss. Heidelberg, 1966; Pieper , P., Th.J. Maarleveld und A.J.T. Jull, Ideologie und Fälschung. Abschließendes zum Komplex der sog. Deventer-Knochen, Archäologisches Korrespondenzblatt 21/2, 1991, 317-322. 9 Luxen, J.-L., The Intangible Dimension of Monuments and Sites, with Reference to the UNESCO World Heritage List, ICOMOS News, 10/2, 2000 (also: http://www.international.icomos.org/victoriafalls2003/luxen_eng.htm). 10 Strongly promoted by Director-General Koïchiro Matsuura, who came into office in 1999, these discussions resulted in the adoption of the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage in October 2003. Although debate has been awkward, the final content of the Convention is not very contentious and it entered into force on April 26 2006.

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11 12 13 14 15 16

17 18 19

20 21

22

23 24

This is a guess. I have no information whatsoever on the drafting process of this document. Art. 28. See below. For a recent example: C. Stockmann & L. Davidsen, Glyptoteket udstiller tyvekoster, Politiken, 1. dec. 2006. The phrase is from Lowenthal, D., Possessed by the Past, New York 1996. Brodie, N., J. Doole P. Watson, Stealing history : the illicit trade in cultural material, Cambridge 2000; Brodie, N., J. Doole & C. Renfrew, Trade in illicit antiquities: the destruction of the world’s archaeological heritage, Cambridge 2001. UNIDROIT is an independent intergovernmental organization, which has its headquarters in Rome. Browne, A., UNESCO and UNIDROIT: the role of conventions in eliminating the illicit art market, Art, Antiquity and Law, 7 (2002), p. 379-385. Nordic countries have endlessly postponed ratification. Finland finally joined in 1999, Denmark and Sweden in 2003 and Iceland and Greenland in 2004. Norway and the Faroe Islands did not join so far. Despite their strong tradition in heritage protection, the Nordic countries join up with the European countries with the largest share in the antiquities market, such as Switzerland, the United Kingdom and The Netherlands. The United Kingdom accepted the Convention in 2002, Switzerland in 2003. The Netherlands has so far neither accepted nor ratified. Note 14 above. The rescue operation was actually more extensive, but not comprehensive. A range of excavations were carried through and a range of monuments were saved. Some temples, such as Abu Simbel were re-erected near their original locations. Others were moved to Khartoum. Other small temples were donated to foreign governments that had assisted in the rescue operation. These can now be admired in Madrid, Turin, New York, Berlin and Leiden. UNESCO, Conventions and Recommendations of Unesco concerning the protection of the cultural heritage, second edition, Paris 1985, p. 75 (IV: A.5.Intro.1). Meadows, D.H., D.L. Meadows, J. Randers & W.W. Behrens III, Limits to Growth, Rome 1972. Maarleveld, Th.J. & J.-K.A. Hagers, Protecting Cultural-Historic Values: Legal Restrictions, Legal Cooperation, International Commitments, The

National Forest and Nature Agency, Workshop on The Cultural

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30 31 32

33 34

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Heritage in The Wadden Sea Region, Ribe September l0th - 12th 1997, Abstracts and Lectures, København 1997, p. 1-12. The discussions on the silk route, including heritage spanning China, Central Asia, the Middle East and the Balkan is a good example: Lawton, J., Silk, Scents and Spice. Tracing the World’s Great Trade Routes, Paris 2004; Feng Jing & Ron van Oers, The Chinese Silk Road as World Cultural Heritage Route, UNESCO Mission Report,

Paris 2004. The interesting thing is that none of the states involved really want to be left out. As such, the project’s process may have more political impact than its final result. Similarly interesting is the nomination of the imperial road of the Inca’s, Qhapaq Nan, spanning Colombia, Ecuador, Peru, Bolivia, Chile and Argentina. Peaceful relationships may perhaps less be at issue, but besides the narco industry and smuggling, some of these countries have an ongoing problem with illegal but strong and paramilitarily supported, treasure-hunting feeding the first world market. Helden, W.A. van, Een halve eeuw Unesco, Den Haag 2001, p. 35. Nevertheless the representativeness is constantly debated. The distribution is skewed towards Europe and the unbalance has been occasion for starting the ‘global strategy’ in order to involve all peoples of the world. Increased attention for the intangible heritage is intricately related (http://whc.unesco. org/en/globalstrategy). Groot, H. de, Mare Liberum, Leiden 1609. The subject was brought up at a very late stage in the negotiations and this was done by the Greek delegation. Platzöder, R., Third United Nations Conference on the Law of the Sea: Documents, Vol. XII, New York 1987, p. 299-303. Denmark has installed a Contiguous Zone as Maritime Archaeological Protection Zone in 1999; Norway did so in 2004. UNCLOS III, Art. 303 (1). Scovazzi, T., Convention on the Protection of Underwater Cultural Heritage, Environmental Policy and Law, 32/3-4, 2002, p. 152-157; Lund, C., The making of the 2001 UNESCO Convention, Prott, L.V. (ed.), Finishing the interrupted voyage, Papers of the UNESCO Asia-Pacific Workshop on the 2001 Convention on the Protection of the Underwater Cultural heritage, Leicester 2006, p. 14-19. See below. Carducci, G., The UNESCO Convention 2001: a Crucial Compromise on Salvage Law and The Law of Finds, Prott, L.V. (ed.), Finishing the interrupted voyage, Papers of the UNESCO Asia-Pacific Workshop on the

35 36 37

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40 41 42 43

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2001 Convention on the Protection of the Underwater Cultural heritage, Leicester 2006, p. 27-31. Whereas in fact the International Convention on Salvage 1989, also has a provision to exclude its application to heritage over 100 years old. Maarleveld, Th.J., Mitigation as archaeological strategy. The Bulletin of the Australasian Institute for Maritime Archaeology 27 2003, p. 135-139. Venezuela and Turkey, who did not accept any reference to the Law of the Sea Convention which they oppose and Norway and Russia, who did not accept UNESCO’s role in maritime affairs, cf. note 7. Such specific regulations are governed by the European Union rather than the Council of Europe. They are the ‘European Union Council Regulation (EEC) No 3911/92 of 9 December 1992 on the export of cultural goods’ and the ‘Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State’. Cleere, H. (ed.), Approaches to the Archaeological Heritage, Cambridge 1984; Trotzig, G. and G. Vahlne (eds.), Archaeology and Society, Large scale rescue operations - their possibilities and Problems, Stockholm 1989. Doc. 4200 The Underwater Cultural Heritage, Report of the Committee on Culture and Education (Rapporteur: John Roper), Strasbourg 1978. CAHAQ, Ad Hoc Committee of Experts on the Underwater Cultural Heritage, Final Activity Report, (CAHAQ(85)5), Strasbourg 1985. Cf. Note 37 above. In practice this also means ‘Activities incidentally affecting Underwater Cultural Heritage’ beyond the 24 mile archaeological protection zone. Developments on the European ‘Continental Shelves’ and in the European ‘Exclusive Economic Zones’ are permit bound and require impact assessment and mitigation, both on the basis of national legislation and on the basis of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo, 1991), to which the EU is a party. Maarleveld, Th.J., Chapter 8, S. Dromgoole (ed.), The Protection of the Underwater Cultural Heritage. National Perspectives in Light of the UNESCO Convention 2001, Leiden / Boston 2006, p. 161-188. ‘Tainted’ is the term use in the United Kingdom’s Dealing in Cultural Objects (Offences) Act 2003, an act that was put in place for the implementation of the 1970 UNESO Convention. According to the Act it is immaterial whether the site from which the object was removed… ‘is above or below water’. Hobsbawm, E. & T. Ranger (eds.), The invention of Tradition, Cambridge 1983.

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47 48 49

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McBryde, I. (ed.), Who owns the Past, Melbourne 1985. See also Carman, J., Against Cultural Property, London 2005. Maarleveld, Th.J., ’Maritime Management Matters’, Chapter 6 in: J. Satchell & P. Palma (eds.), Managing the Marine Cultural Heritage, Council for British Archaeology Research Report 153, York forthcoming 2007, pp. 49-58. Mentioning the Ulu Burun shipwreck of the 14th century BC (e.g. http://uluburun.de/) is enough to underscore this, but so is mention of the appalling scam on the recently emptied site of a 10th century ship with middle eastern and Chinese cargo in the Java Sea (http://en.epochtimes.com/news/510-29/33803.html; http://news.bbc.co.uk/2/hi/asia-pacific/6162804.stm), or the 18th century ‘Rooswijk’ (Duivenvoorde, W. van, ‘Dutch Ministry of Finance Violates Agreement on Submerged Cultural Heritage’ The INA Quarterly Vol. 33. 1; Spring 2006 ; http://domeinen-oz.nl/default. asp?CMS_ITEM=683B41BB5444E3B9BACB94BE7FICD45X176X4920 4X94; http://www..newworldtreasures.com/rooswijk.htm). Status 31 July 2007: Panama (20/05/2003), Bulgaria (06/10/2003), Croatia (01/12/2004), Spain (06/06/2005), Libyan Arab Jamahiriya (23/06/2005), Nigeria (21/10/2005), Lithuania (12/06/2006), Mexico (05/07/2006), Paraguay (07/09/2006), Portugal (21/09/2006), Ecuador (01/12/2006), Ukraine (27/12/2006), Lebanon (08/01/2007), Saint Lucia (01/02/2007), Romania (31/07/2007). http://www.archaeology.sdu.dk/